In the recent landmark decision United States v. Windsor, the U.S. Supreme Court stuck down one section of the Defense of Marriage Act (DOMA) that defines “spouse” and “marriage for purposes of federal lawthereby recognizing same-sex marriages in those states that permit such unionsThis decision has left some employers unsure how to treat same-sex spouses under their employee benefit plans and for tax purposes.
Prior to this decision, DOMA defined “marriage” for purposes of federal law as a union exclusively between one man and one woman, and “spouse” as a person of the opposite sex who is a husband wife.These definitions required federal laws to ignore same-sex marriages that were legally entered into under state law. Accordingly, in striking down this section of DOMA, the Windsor decision will impact more than 1,000 federal laws that address or reference the terms “marriage” and “spouse.”
Much of the confusion employers are experiencing relates to the treatment of a same-sex spouse under federal law.In particular, it is unclear whether a couple that marries in a state that recognizes same-sex marriageand then moves to a state that does not recognize such marriage, is considered married for purposes of federal law.
Historically, most federal laws that utilize the term “spouse” or “marriage” have looked to an individual’s state of residency to determine whether the individual was married. For example, the Internal Revenue Service has had guidance in place since 1958 providing that an individual’s place of residence is determinative of marital status. This means that unless federal guidance is published to the contrary, the pre-DOMA position of looking at residency to determine marital status under federal law will continue.
Employers should be getting an answer to this unresolved issue soon.It is anticipated that many federal agencies—including the IRS, which was the subject of the Windsor decision—will follow the lead of the Office of Personnel Management, which issued internal guidance seven days after the ruling recognizing same-sex couples as married for federal benefits regardless of their state of residency. If federal guidance is issued, it will ensure that legally married same-sex couples are treated the same for federal law purposes.
Additional confusion is resulting from the decision to leav intact the section of DOMA that allow states to continue to deny the legal force of same-sex marriages lawfully entered into in other states.Today, only 13 states and the District of Columbia expressly permit same-sex marriage.
Due to this provision staying intact and the anticipated federal guidance, states with laws that do not recognize same-sex marriages (i.e. “mini-DOMA laws”) may require employers to treat an employee as married for federal, but unmarried for state law purposes.
Ohio is one of those with a mini-DOMA law, which states, “Any marriage between persons of the same sex shall have no legal force or effect in this state and, if attempted to be entered into in this state, is void ab initio and shall not be recognized.” However, Ohio employers may still need to amend their employment policies, benefit plans and tax practices to reflect the federal recognition of a same-sex spouse as a legal spouse.
If you’re an Ohio employer who is still unsure what is now required of you, that may be because questions still remain.
As employers await clarification as to whether residency will be disregarded for determining whether an employee is married under federal law, managers should be examining how the anticipated federal guidance will impact their employment policies, employee benefit plans and tax positions so they are ready to act when guidance is issued.They should also understand how Ohio’mini-DOMA law may require a different treatment of same-sex spouses under state law.
Christine Poth is an attorney and partner in Bricker & Eckler’s employment group. She can be reached at (614) 227-2395 or firstname.lastname@example.org. Christine Poth is an attorney and partner in Bricker & Eckler’s employment group. She can be reached at (614) 227-2395 or .